The defendant has filed a Motion to Amend its petition for removal pursuant to 28 U.S.C. § 1653 which provides: "defective allegations of jurisdiction may be amended, upon terms, in the trial or appellate courts." During the thirty-day removal period a defendant seeking removal generally has a right to amend his petition. Here, however, the statutory period for filing the removal petition, and thus for establishing jurisdiction, expired prior to the filing of the defendant's motion.

Although the statutory time frame cannot be extended, some courts have allowed a defendant to amend its removal petition after the thirty-day period has run if the petition is merely defective. One such case was Harper v. National Flood Insurers Association, 494 F. Supp. 234 (M.D.Pa. 1980), in which the court commented on the cases not permitting amendment after the thirty days.

A fair reading of those cases is that a defendant may not, after the 30-day filing period, amend the petition for removal in such a manner as to change or alter the import of the petition, the resultant effect being to create jurisdiction where none existed before. Hence the rule that only technical changes, as well as amendments to cure defective allegations, will be permitted. 494 F. Supp. at 236 (emphasis in original).

In our case, it appears that an amendment would be only for the purpose of setting forth more specifically grounds for removal which were imperfectly stated in the original petition. The plaintiff has not shown that it would be prejudiced if this Court were to allow the defendant to amend its petition for removal. There is also no controversy as to the diverse citizenship of the parties both at the time suit was commenced and at the time of removal. Therefore, we will allow the defendant an opportunity to amend its petition for removal.

B. MOTION TO DISMISS

The Court also has before it a Motion to Dismiss Count IV of the Complaint which seeks punitive damages.

The Complaint alleged that the plaintiff was injured when a piece of wire, holding roofing nails together in a nailer, came out and penetrated his right eye. The injury occurred in Massachusetts where the plaintiff was working on a job for his Pennsylvania employer.

Since the differences between Massachusetts and Pennsylvania law regarding recovery of punitive damages are significant, a conflict in terms of choice of law is presented. In this diversity action, the conflict of laws rules to be applied are those of the forum state. Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487, 85 L. Ed. 1477, 61 S. Ct. 1020 (1941). Therefore, we will look to Pennsylvania law to determine which state's law, Massachusetts or Pennsylvania, should be applied.

It appears to the Court that Pennsylvania interests out-weigh Massachusetts interests. Massachusetts has a policy of not permitting punitive damages against manufacturers unless expressly authorized by statute. International Fidelity Insurance Co. v. Wilson, 387 Mass. 841, 443 N.E.2d 1308 (1983). That law appears designed to deter recovery against Massachusetts manufacturers. Here, the defendant is incorporated in Rhode Island with an office in Pennsylvania. A decision in this case will not adversely affect the manufacturing process in Massachusetts. Pennsylvania's interest in assuring tort victims full compensation will be served by applying Pennsylvania law, since Pennsylvania will permit the recovery of punitive damages in certain situations. Plaintiff in this case is a Pennsylvania resident.

The merchandise was allegedly sold and delivered in Pennsylvania. The nailer and roofing nails were allegedly delivered to the plaintiff's employer in Duncansville, Pennsylvania. The relationship of the parties was centered in Pennsylvania. There have been no assertions that any activity transpired in Massachusetts other than the fortuitous happening of the injury. The accident could have as easily occurred in Pennsylvania or another state where the employer secured work for his employees. Pennsylvania has the most significant relationship to the parties. Therefore, an analysis of the interests of the states and of the contacts with those states leads us to conclude that Pennsylvania law will be employed in this action.

A plaintiff can recover punitive damages in Pennsylvania for a defendant's outrageous conduct. Smith v. Brown, 283 Pa. Super. 116, 423 A.2d 743 (1980). The Complaint alleges sufficient grounds on which to base the plaintiff's claim for punitive damages under the more liberal notice pleading requirements of federal court. Accordingly, we will not strike Count IV of the Complaint.

An appropriate order will issue.

ORDER

AND NOW, this 30th day of May, 1985, for the reasons set forth in the accompanying Memorandum Opinion,

IT IS ORDERED that:

(1) Plaintiff's Motion to Remand is DENIED;

(2) Defendant's Motion for Leave to File an Amended Petition for Removal is GRANTED, and such amended petition shall be filed within ten (10) days from the date of this Order; and

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